Daily fantasy contests pitting users against the house instead of other customers may not have much of a future in Virginia following an official opinion from the state’s attorney general.

In a recently released official opinion from Virginia Attorney General Jason S. Miyares, the attorney general concluded that pick’em fantasy games should be considered as sports betting under Virginia law.

“Accordingly, it is my opinion that when a customer places a bet related to individual athletes’ performance metrics, the outcome of which is determined by reference to a contest operator’s established baseline rather than choices made by other customers, the customer is engaged in sports betting and not a fantasy contest,” he wrote.

Delegate requested attorney general’s opinion

Virginia House of Delegates member Wren M. Williams requested the opinion from Miyares, specifically asking whether an arrangement involving “only a single customer” constitutes a fantasy contest or sports betting under Virginia law.

Because fantasy contests require multiple customers competing against each other, Miyares wrote, a gambling arrangement that involves customers betting on athletes’ performance metrics against an operator’s established baseline, and not other customers, constitutes sports betting.

DFS operators Underdog Fantasy and PrizePicks both offer these types of games in the state.

“Accordingly, a ‘fantasy contest’ is one in which multiple individual contestants earn points based on statistical, not actual, results of athletes’ performances and a contestant wins upon garnering more points than the other contestants. The contest operator, or ‘the house,’ is not intended to be one of the individual contestants in a multi-player fantasy contest,” Miyares noted.

Miyares specifically pointed to pick’em style games and over/under player prop pick’em games. Based upon Virginia law, these do not fit the definition of a fantasy contest, he wrote, and align more closely with a form of sports betting.

In a footnote of his opinion, Miyares noted that any fantasy sports operator who wishes to offer these types of games in the state must comply with permitting requirements of the Virginia sports betting program established by the Virginia Lottery Board.

It’s important to note that attorney general opinions are not rulings and do not create new laws. The general assembly creates and amends laws in the state.

Another state examining pick’em games

Virginia is the latest state to examine these specific pick’em DFS games where users play against the house. Maine, Michigan, and New York have all taken recent action to ban the types of DFS games.

Colorado has also recently taken action to begin examining the types of fantasy games.

Perhaps in a response to the recent crackdowns, Underdog Fantasy recently launched Pick’em Champions, a new peer-to-peer daily fantasy sports game that will allow players to build teams of athletes and predict how they’ll perform against statistical benchmarks. The new game is currently available in Alabama, Mississippi, Tennessee, and Wyoming, but not Virginia.